Nelson v. Kentucky River Stone & Sand Co.

• Decision Date: 03 December 1918
• Citation: 206 S.W. 473,182 Ky. 317
• Parties: NELSON v. KENTUCKY RIVER STONE & SAND CO.
• Court: Kentucky Court of Appeals

206 S.W. 473

182 Ky. 317

NELSON v. KENTUCKY RIVER STONE & SAND CO.

Court of Appeals of Kentucky.

December 3, 1918

Appeal from Circuit Court, Anderson County.

Proceeding for compensation under the Workmen's Compensation Act by John T. Nelson against the Kentucky River Stone & Sand Company. Award of Workmen's Compensation Board affirmed by circuit court, and Nelson appeals. Reversed and remanded with directions.

Lillard Carter, of Lawrenceburg, and R. L. Black, of Harrodsburg, for appellant.

O'Neal & O'Neal, of Louisville, and F. R. Feland, of Lawrenceburg, for appellee.

CLAY C.

On October 4, 1916, John T. Nelson was working for the Kentucky River Stone & Sand Company as foreman of a gang of men engaged in sledging rock. As he was passing one of the men engaged in that work, a small piece of rock struck him in the eye, causing him to lose the sight thereof and necessitating the removal of the eyeball and the use of a glass eye.

The company admitted that the accident arose out of and in the course of Nelson's employment, and prior to the hearing before the Workmen's Compensation Board offered to pay him 65 per cent. of his average weekly wages during 100 weeks as required by section 18 of the Workmen's Compensation Act, Acts 1916, c. 33, p. 354, now section 4899, Ky. St Supp. 1918, which provides in part as follows:

"For injuries enumerated in the following schedule, the employé shall receive in lieu of all other compensation, except such as may be payable under sections 4 and 5 hereof, a weekly compensation equal to 65 per cent. of his average weekly earnings, but not less than $5 per week nor exceeding $12 per week, for the respective periods stated thereon, to wit: * * * The total and permanent loss of the sight of an eye, 65 per cent. of the average weekly wages during one hundred weeks."

Nelson declined to accept the offer of the company and insisted that he was entitled to compensation under the following provision of section 18:

"In all other cases of permanent partial disability, including any disfigurement which will impair the future usefulness or occupational opportunities of the injured employé, compensation shall be determined according to the percentage of disability, taking into account, among other things, any previous disability, the nature of the physical injury or disfigurement, the occupation of the injured employé and age at the time of injury; the compensation paid therefor shall be 65 per cent. of the average weekly earnings of the employé, but not less than $5 nor more than $12, multiplied by the percentage of disability caused by the injury, for such period as the board may determine, not exceeding 335 weeks nor a maximum sum of $4,000."

The findings of fact, ruling of law, and award of the Workmen's Compensation Board are as follows:

"Findings of Fact.

(1) Plaintiff was injured by accident arising out of and in the course of his employment, and is entitled to compensation at the rate of $9.75 per week for such a period as the provisions of the Compensation Act may require.

(2) The removal of the injured eyeball was necessitated by the injury, the socket being left in good condition and the patient's ability to wear an artificial eye being normal, or about equal to the average in such cases.

(3) The plaintiff's earning capacity is not shown to have been impaired by the removal of the eyeball, beyond the impairment caused by the loss of sight.

(4) The removal of an eye which has been accidentally injured sufficiently to destroy the sight is necessary, in nearly all instances, in order to save the remaining eye.

Ruling of Law.

(1) The substitution of an artificial eye for a blind eye does not cause an increased disfigurement which will impair the future usefulness or occupational opportunities of an employé engaged in the employment in which plaintiff was injured.

Award.

The plaintiff, John T. Nelson, is awarded compensation against the defendant, the Kentucky River Stone & Sand Company, and its insurer, the Employers' Liability Assurance Corporation, Limited, in the sum of $9.75 per week for a period of 100 weeks. All costs of proceedings before the Workmen's Compensation Board are directed to be paid by the plaintiff, the defendant having before hearing offered to pay the amount recovered."

Within 20 days after the rendition of the award, Nelson appealed to the Anderson circuit court by filing a petition for a review on following grounds:

"First. The said court acted in excess of its power.

Second. Neither the order, decision, nor award is based on the facts of the case, nor is any one of them in conformity with the provision of the said act. The findings of fact are not such as are warranted by the proof and do not support the order, decision, or award.

Third. The award makes no allowance for the loss of the eye itself or disfigurement, but only for the loss of the sight."

On the appeal the petitioner offered evidence to the effect that the eye was so injured that it was necessary to cut very deep in removing the eyeball, thus leaving a poor stump for the fitting of an artificial eye. For this reason the petitioner will not be able to wear an artificial eye all the time and during such period as he may wear it he will...